dissenting:

I respectfully dissent.

After the Japanese captured Malaya during World War II, we were cut off from the world’s major supply of rubber. A substitute was essential to the war effort. , Fortunately, we had obtained from the Germans the secret of how to make artificial rubber from styrene and butadiene. The government built a synthetic rubber plant and hired several companies to run different parts of it. The rubber companies, as government agents working with government-owned materials on government property, “arranged” nothing. They did what they were told, to furnish the government with the rubber needed for the war. The valuable styrene was piped back into the chemical plant, when it fell below specified purity requirements, for distillation and reuse.

We need not decide anything regarding the merits of this case. We should not resolve the difficult legal issues presented here, because there is no final judgment on all issues and all parties, and when there is one, it is likely to moot the dispute we now resolve. All the companies involved had clauses in their contracts with the government requiring the government to hold them harmless for any liabilities arising out of their operation of the rubber plant. The district court has already ordered that the *567 government indemnify both Dow Chemical and the rubber companies for any money they have to pay on account of the ground contamination at issue in this litigation. The district court granted final judgment to the rubber companies against Dow Chemical, but did not grant final judgment on its order against the government. If the district court ultimately renders a judgment in accord with its order, then Dow Chemical will not owe any of its own money to anyone and so will not be entitled to contribution from the rubber companies. Although the government might step into Dow’s shoes, it will also step into the rubber companies’ shoes, so any right to contribution will disappear. This opinion on the merits of the case will therefore be moot.

We have previously cautioned against routine issuance of Rule 54(b) judgments. In an opinion by Judge, now Justice, Kennedy, we held that

Morrison-Knudsen Co. v. Archer, 655 F.2d 962, 965 (9th Cir.1981).

Subsequently we called Morrison-Knudsen “outdated and overly restrictive.” Texaco, Inc. v. Ponsoldt, 939 F.2d 794, 798 (9th Cir.1991). But a subsequent panel cannot modify the law of this circuit by a critical remark. See United States v. Lewis, 991 F.2d 524 , 526 n. 1 (9th Cir.1993). Morrison-Knudsen is the law of this circuit unless and until we overrule it en banc.

The district court order in this case did not make the specific findings and determination required by Rule 54(b) as construed by Morrison-Knudsen. We should exercise our discretion to dismiss the appeal because, based on the district court’s already issued order, if the case proceeds to final judgment in district court, and that judgment stands, we shall never have to decide the issue now before us.

I respectfully disagree with the majority’s resolution of the substantive issue in this ease as well. Dow Chemical did not establish that the rubber companies “arranged” for anything. They were agents of the United States doing exactly what they were told in a government facility with government-owned materials. We might as well impose environmental liability on those who served in the Army during World War II for the lead bullets they left in the soil.